April 18, 2016

Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))

https://www.beynensonlaw.com/case-law/lotus-acupuncture-pc-v-unitrin-advantage-ins-co-2016-ny-slip-op50603u/

Court: Appellate Term, First Department
Decided: April 18, 2016
Citation: 2016 NY Slip Op 50603(U) · 51 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Lotus Acupuncture PC v Unitrin Advantage Ins. Co., 51 Misc 3d 139(A), 2016 NY Slip Op 50603(U) (App Term, 1st Dept 2016)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue. Although the insurer proved timely mailing of its denials and submitted admissible reports, the reviewer merely asserted that documentation lacked supportive information for one treatment period. That assertion did not eliminate triable issues concerning medical necessity. The reviewer also did not address a later service date or conclude that the assignor's condition could never warrant further acupuncture, so the report could not support denial of that claim under Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. The Appellate Term, First Department, reversed the order granting the insurer summary judgment, denied its motion and reinstated the provider's complaint.

Reported in New York Official Reports at Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))

[*1]

Lotus Acupuncture PC v Unitrin Advantage Ins. Co.

2016 NY Slip Op 50603(U) [51 Misc 3d 139(A)]

Decided on April 18, 2016

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 18, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570359/15

Lotus Acupuncture PC a/a/o Marilyn Rivera, Plaintiff-Appellant,
against
Unitrin Advantage Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.) dated April 4, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.) dated April 4, 2014, reversed, with $10 costs, defendant’s motion denied, and the complaint reinstated.

The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., 136 AD3d 722 [2016]), and that the peer review reports of defendant’s acupuncturist were in admissible form (see Furtow v Jenstro Enters., Inc., 75 AD3d 494, 495 [2010]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]).However, the peer review report pertaining to acupuncture services rendered November 19, 2007 through November 29, 2007, failed to make a prima facie showing that the services rendered during this time frame were not medically necessary. The peer reviewer’s assertion, in effect, that the documentation submitted for his review lacked “supportive information” was insufficient to sustain defendant’s burden of eliminating all triable issues as to medical necessity (see Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50586[U][App Term, 1st Dept 2013]). Moreover, inasmuch as the peer reviewer did not address plaintiff’s claim for services rendered January 2, 2008, and “stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatment,” his report cannot properly form the basis for denial of this claim (see Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 44 Misc 3d 144[A], [*2]2014 NY Slip Op 51407[U][App Term, 1st Dept. 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 18, 2016

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the acupuncture peer review insufficient because its assertion that the records lacked supportive information made no prima facie showing, and it did not address a later date of service or rule out further treatment.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 73 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's documentary submissions established prima facie that its denials were timely and properly mailed, though the insurer still lost because its peer review failed to show lack of medical necessity.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C. (2016 NY Slip Op 00916) FollowedThe provider's affidavits and medical records raised a triable issue of medical necessity despite the insurer's prima facie showing.
Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50586(U)) FollowedThe insurer's peer review lacked a factual basis or medical rationale for finding the prescribed supplies unnecessary.
Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. (2014 NY Slip Op 51407(U)) FollowedThe insurer's peer review of earlier acupuncture services did not establish that the later services sued upon lacked medical necessity.

Similar decisions

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.
Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))The insurer's summary judgment motion on its fee-schedule defense was denied because its proof did not establish excessive charges.
TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))The insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))The insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.